DOL ISSUES PROPOSED REVISIONS TO FMLA
REGULATIONS AND REQUESTS COMMENTS ON MILITARY FAMILY LEAVE
On February 11, 2008, the DOL issued proposed revisions
to the Family and Medical Leave Act (“FMLA”)
regulations and also requested comments on issues related
to the recent enactment of the National Defense Authorization
Act of 2008, which amends the FMLA to provide for military
family leave.
Proposed Changes to Existing FMLA
Regulations
In the first proposed revisions to the FMLA’s regulations
since the law’s enactment in 1993, the DOL seeks to
address numerous concerns regarding the current regulations.
Several court cases, including the Supreme Court’s
decision in Ragsdale
v. Wolverine World Wide, Inc., have called into doubt
the validity of certain regulations regarding penalties
for FMLA violations and the definition of a serious health
condition. In addition, employers have expressed frustration
with various administrative issues under FMLA such as required
notices, intermittent leave, and medical certifications.
The proposed revisions are extensive, but the most significant
can be summarized in categories of interest to employers:
definition of a serious health condition; FMLA-required
notices by both the employer and employee; and medical certification.
Definition of “Serious Health
Condition”
Under the current regulations, a serious health condition
exists where there is a period of incapacity of more than
three consecutive calendar days and treatment two or more
times by a health care provider. A “chronic”
serious health condition is one that requires periodic visits
for treatment. The revised regulations would:
• Specify that the two treatments must take place
within 30 days.
• Add physician assistants to the list of health
care providers.
• Define “periodic visit” as visiting
a physician twice or more per year for the same condition.
FMLA-Required Notices
The FMLA imposes certain notice requirements on employers
and employees: (1) Employers must generally notify employees
about the FMLA; (2) Employees must notify employers of their
need for FMLA leave; and (3) Employers must notify employees
requesting leave of their specific FMLA rights and designate
leave as FMLA-qualifying within two business days. The DOL
proposes revisions to all of these required notices:
• The general notice must be included in a handbook
or distributed annually (a new requirement) to each employee,
either in electronic or paper form.
• The employer must notify an employee of his/her
eligibility for FMLA within 5 business days (rather than
the current 2-day period) after receiving the request
for leave or acquiring knowledge that the leave may be
for FMLA-qualifying reasons.
o The eligibility notice must include whether the
employee has FMLA leave available.
o If the employee is not eligible or has no leave, the
notice must contain an explanation as to why.
• The employer must notify an employee that leave
has been designated as FMLA-leave within 5 business days
(rather than the current 2-day period) after receiving
sufficient information to make this determination.
o The designation notice must inform the employee
of the amount of time (hours, days, or weeks) designated
as FMLA leave.
o For chronic conditions, the notice of amount of leave
designated and counted must be provided every 30 days
(rather than the current twice-yearly requirement).
• Where the need for leave is not foreseeable,
the employee must notify the employer of the need for
leave as soon as practicable, which the DOL envisions
as prior to the start of the shift (rather than the current
allowable period of within 1-2 business days afterwards),
except when extraordinary circumstances exist.
• The employee must comply with the employer’s
usual procedures for calling in and requesting leave.
Medical Certifications
In order to qualify for FMLA leave, the employer is entitled
to request and an employee must provide medical certification
of the need for leave. The employer can also require recertifications
and fitness-for-duty certifications. The proposed revisions
to the regulations would:
• Allow the employer 5 days (rather than the current
2 days) to request certification after receiving notice
of the need for leave.
• Where the certification is deemed incomplete or
insufficient, require the employer to state in writing
what additional information is necessary and to give the
employee seven calendar days to address the deficiency.
• Revise the requirements for the medical certification
form to make it easier for health care providers to complete.
o The DOL has revised its model form (WH-380), which
is used by many employers.
• Permit the employer to contact the employee’s
health care provider directly, rather than through its
own health care provider, for clarification of the initial
medical certification or fitness-for-duty certification,
in compliance with HIPAA’s (Health Insurance Portability
and Accountability Act) Privacy Rule governing medical
information.
• Removes the requirements that employees must consent
to the employer’s verification of the certification.
• Extends the time allowed for the employer to provide
the results of second and third opinions to 5 days (from
the current 2 days).
• Allow employers to send an employee’s attendance
record to a health care provider and ask if the intermittent
absences are consistent with the employee’s qualifying
medical condition.
• Where a minimum leave period is specified, prohibit
an employer from requesting recertification before that
period has expired; but the regulations further provide
that recertifications may be requested in all cases every
six months.
• Allows an employer to require a fitness-for-duty
certification every 30 days if an employee has used intermittent
leave during that period and reasonable safety concerns
exist.
Other Proposed Changes
Some additional changes of interest to employers:
• Currently, the regulations distinguish between
bonuses for job performance, such as meeting production
goals, and bonuses for absences of occurrences, such as
perfect attendance or safety records. The proposed revision
would rewrite the regulation to provide that if a bonus
“is based on the achievement of a specified goal,
such as hours worked, products sold, or perfect attendance”
and the employee fails to meet the goal because of FMLA
leave, payment of the bonus may be denied unless it is
paid to other employees on non-FMLA leave.
• Employers have expressed concern that there is
increased usage of FMLA leave during popular vacation
or personal leave times and that those seeking to use
FMLA are accorded more favorable treatment than those
using non-FMLA leave. The revised regulations would specify
that the employee must comply with the terms and conditions
of an employer’s paid leave policy in order to use
such leave concurrently with FMLA leave.
• Some courts have interpreted the regulations
to hold that light duty is counted as FMLA leave. The
revised regulations would clarify that light duty does
not diminish the twelve-week entitlement to FMLA leave.
• As we have previously reported, July
2007 E-Update, the U.S. Court of Appeals for the Fourth
Circuit takes the position that settlements of past FMLA
claims requires the approval of a court or the DOL. The
revised regulations would specify that such approval is
not required.
• The Supreme Court in Ragsdale invalidated the
DOL’s regulation providing that, where an employer
failed to timely designate FMLA leave, the leave did not
count towards the 12-week FMLA entitlement, regardless
of whether the employee actually suffered any harm. The
revised regulations would provide that, where an employee
could show actual harm as a result of an employer’s
interference with or denial of FMLA rights, the employee
would be entitled to statutory remedies.
The proposed revisions to the FMLA regulations are now
open for public comment for 60 days from the date of publication.
Once the comment period has expired, the DOL will take some
time to consider the comments and make any additional revisions.
The DOL plans to issue the final regulations before the
end of the Bush administration.
Comments on Military Family Leave
Issues
The DOL has not issued proposed regulations covering military
family leave, but has posed a number of questions for comment.
Among the issues raised are:
• How to deal with treatment or therapy for illnesses
that are not manifested until after the service member
has returned to the work force? It appears that the DOL
is thinking about how to deal with post-traumatic stress
disorder, although it is not specially mentioned.
• When a family member has been called up, what
situations constitute a “qualifying exigency”
permitting a relative to take FMLA leave? The DOL has
requested comment on how to treat such situations as making
arrangements for child care, attending counseling and
attending ceremonies.
We will discuss in detail the proposed revisions to the
current FMLA regulations and the anticipated military family
leave regulations at our upcoming seminar to be held at
the Kingsmill Resort & Spa, May 28-30, 2008. We invite
you to join us.
Shawe
Rosenthal, LLP provides this publication for informational
purposes, and it should not be construed or relied upon
as legal advice. You should contact your Shawe Rosenthal,
LLP lawyer to discuss any questions that you may have concerning
your own situation.
|
